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Potential Nominee Profile: Brett Kavanaugh

SCOTUSblog, June 2018

SCOTUSblog’s profile of Kavanaugh provides a comprehensive summary of the judge’s background, from his upbringing in the Washington area to his college and law school years at Yale to his prestigious positions in various parts of the federal government. As the profile notes, Kavanaugh was a law clerk for Kennedy, whom he has been nominated to replace. The piece offers a highlight reel of Kavanaugh’s time on the federal appeals court in Washington. Ultimately, the article concludes, Kavanaugh “brings a pragmatic approach to judging,” albeit with a serious conservative bent.

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Brett Kavanaugh, a Conservative Stalwart in Political Fights and on the Bench

New York Times, July 2018

The New York Times’ Adam Liptak examines Kavanaugh’s personal and professional history. The profile depicts Kavanaugh as a decidedly conservative Washington insider but hardly a rank partisan. He’s known as a nuanced and careful thinker, and although his judicial opinions are often lauded by voices on the right, he has shied away from absolutist positions, at times to the chagrin of conservatives. He has “formed lifelong friendships with liberals, many of whom praise his intellect and civility,” and those who worked with him before he became a judge described him as “often a moderating force.”

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Kavanaugh Paper Chase Threatens to Draw Out Confirmation Battle

Politico, July 2018

Kavanaugh’s nomination “presents a band of government archivists and White House officials with a herculean task: wading through what could be millions of pages of records” ahead of his confirmation hearings. The paper trail leads back to the two years Kavanaugh spent in Bush’s White House Counsel’s Office and another three years he spent as Bush’s staff secretary. Politico’s Josh Gerstein takes a look at how the extensive documentation of Kavanaugh’s executive branch career could slow the judge’s confirmation process.

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Trump’s Supreme Court Frontrunner Is the “Forrest Gump of Republican Politics”

Mother Jones, June 2018

This Mother Jones profile casts Kavanaugh as a consummate insider of the D.C. conservative establishment who “frequently inserted himself into high-profile political battles.” Kavanaugh worked on the team of Kenneth Starr, the independent counsel who investigated President Bill Clinton’s affair with Monica Lewinsky. He represented the Miami relatives of Elian Gonzalez in a high-profile immigration dispute in 2000, in which they sought to keep the Cuban boy in the United States. He worked on George W. Bush’s legal team during the contentious 2000 presidential election recount in Florida — and went on to oversee judicial nominations in Bush’s White House Counsel’s Office. His ubiquity earned him the nickname the “Forrest Gump of Republican politics.”

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How Four Potential Nominees Would Change the Supreme Court

FiveThirtyEight, July 2018

FiveThirtyEight draws on a tool to measure judicial ideology developed by legal scholars and political scientists to assess Kavanaugh’s potential effect on the Supreme Court’s jurisprudential makeup. The conclusion: a Justice Kavanaugh “would likely represent a reliably conservative voice and vote on the high court”—“to the right of Gorsuch and Justice Samuel Alito, and just to the left of the arch conservative Justice Clarence Thomas.” That would leave Chief Justice John Roberts as the “new median justice.” FiveThirtyEight adds a caveat, however, about the metric it’s relying on: it’s based on the ideology of the politicians who nominated a judge—in this case, Bush—rather than the judge’s rulings.

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Brett Kavanaugh, Supreme Court Front-Runner, Once Argued Broad Grounds for Impeachment

The New York Times, July 2018

The Times’ Mark Landler and Matt Apuzzo take a look at Kavanaugh’s time on Starr’s team — and its implications for Trump. Starr’s report as independent counsel, which Kavanaugh co-wrote, argues that lying to staff members and misleading the public are grounds to impeach a president for obstruction of justice. That “broad definition of obstruction of justice,” Landler and Apuzzo write, “would be damaging if applied to President Trump in the Russia investigation.”

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Top Supreme Court Prospect Has Argued Presidents Should Not Be Distracted by Investigations and Lawsuits

The Washington Post, June 2018

The Washington Post examines a 2009 law review article in which Kavanaugh argued that a sitting president shouldn’t have to deal with “time-consuming and distracting” lawsuits and investigations. The distraction “would ill serve the public interest, especially in times of financial or national security crisis,” Kavanaugh wrote. That, the Post notes, “puts him on the record regarding a topic of intense interest to Trump — and could be a central focus of his confirmation hearing.”

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Holding Court

The New Yorker, March 2012

In this comment, Jeffrey Toobin describes Kavanaugh as a judge in thrall to partisan politics. Toobin characterizes Kavanaugh’s work as an appeals judge as “startling.” He accuses Kavanaugh of “pandering to the base” in a dissenting opinion he wrote in a case challenging Obamacare. Kavanaugh “appeared to offer some advice to the Republicans who are challenging Obama in the election,” Toobin wrote — whatever courts hold, a Republican president could simply decline to enforce the health-care law because he deems it unconstitutional.

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Leading Contender to Be Trump’s Supreme Court Pick Faces Questions from Social Conservatives

The Washington Post, July 2018

The Washington Post’s Robert Acosta and Josh Dawsey survey conservative misgivings about Kavanaugh’s record on the federal appeals court in Washington. Where Toobin saw Kavanaugh as a right-wing partisan, many social conservatives fear he’s not enough of a hardliner. The conservative response to the White House floating Kavanaugh’s name included “a clamor from those who see him as out of step on health care and abortion, or too tied to George W. Bush’s White House.” The concerns arise from opinions Kavanaugh wrote in cases challenging the Affordable Care Act and in a recent case over the right of an immigrant teenager in federal custody to have an abortion. The judge dissented in those cases, but did not go as far as “ideological purists” would have liked.

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Federal Judge Downplayed Role in Detainee Cases

NPR, June 2007

NPR’s Ari Shapiro reported on what some Democratic senators saw as misleading testimony Kavanaugh provided during his 2006 confirmation hearing to become a federal appeals judge in Washington. Kavanaugh had told Sen. Richard Durbin, D.-Illinois, that during his time in the Bush White House he was not involved in conversations about the rules governing the handling of detainees captured in the War on Terror. In fact, he had been involved in 2002 discussions about whether detainees had a right to an attorney. Durbin told NPR he felt “perilously close to being lied to.” (Kavanaugh, through a court spokesman, called his testimony accurate.)

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